Makers Of Firefly 'Fan-game' Abuse DMCA To Try To Silence Critic

from the really-guys? dept

DarkCryo is a somewhat controversial operation that has been trying for a while to build an "unofficial" multiplayer online game based on the Joss Whedon TV-show/movie/cult classic Firefly. As we've discussed in the past (directly about Firefly, even) we think that this kind of fan creativity should be encouraged, as it's these kinds of fans that have kept the brands and communities together while the big companies let them wither. Of course, Fox Entertainment wasn't too happy and shut it down. The recent controversy came over attempts to resurrect it, with slightly vague suggestions that they had Fox's permission. As people dug into the story, they realized it was something significantly less than permission.

Among the leading critics of DarkCryo is the site FuriousNads by Christopher Frankonis. In particular, Frankonis quite rightly called out DarkCryo for running an IndieGoGo crowdfunding campaign that pretty clearly violated IndieGoGo terms and (much more importantly) securities law by offering a form of an "investment" with "returns" at certain levels. That's a big no-no, even though it would be legalized in the US if not for heel-dragging bureaucrats.

Though, looking at Google cache, it looks like they also used modified version of that image, superimposing other images on top of it (which, likely, would make the use even more protected). This is clearly an abuse of the DMCA. Such a usage of a logo is about as clear a case of fair use as you could imagine. Frankonis was clearly reporting on DarkCryo, and using the logo in a way that it would be hard to see as anything but fair use.

The site has since replaced all images of the graphic with the following instead:

For what it's worth, Frankonis' hosting firm overstates its reasons for taking down the image:

“We’ve received a DMCA complaint regarding content hosted in your account,” came the late-night email from Acorn Host. “As you are probably aware, web hosts do not have much leeway in responding to complaints like this. We do not get to judge fair use or anything of that sort; we are required to remove anything someone submits a claim about, until which time as you submit a counter-complaint.”

That's not quite true. Acorn absolutely can analyze the situation and could determine that it believes with very high probability that the use would be called "fair use" by a court and then leave it up. The issue is that leaving it up just removes the easy safe harbors that would get Acorn out of any lawsuit. So there are certainly good reasons for it to do what it did, but they are not "required" to do so. They just have to do so if they want to keep the safe harbor protections. That said, we've heard of so many stories of hosting firms completely shutting down entire accounts based on a single DMCA notice that Acorn's position is hardly that egregious. The response is better than many others.

It's unclear if Frankonis intends to file a counternotice, as he suggests he's content with his replacement graphic instead. Given the subject matter, he's probably right. Still, this is yet another case of people abusing copyright law with the clear intent of silencing criticism. That it's coming from an operation that is trying to rely (heavily) on exceptions to copyright law for its own project just makes it doubly ridiculous.

thanks for raising awareness about DMCA

Hi,

Thanks for your article raising awareness about DMCA. As the owner of Acorn Host, the company you refer to, I wanted to add a few words.

The part of our letter that Christopher left out of his blog post might help elucidate our position:
"We are sending you this as a courtesy to request that you take the images down yourself; if we don't hear from you within, we will disable access to these files. We try to do this as non-invasively as possible, so we would likely change the permissions on the files so they cannot be seen by the public."

Tempers tend to run high around DMCA complaints. We're a small company, and one that values compassion and connection. We try not to overreact one way or the other to these complaints. That said, in this case we made a mistake because we didn't get the "official" claim before letting the client know about the complaint, we went on an unofficial claim but didn't make that clear in the letter to the client. So it still could have been handled better.

I also think you make a good point, that we do have a choice, we would just be forfeiting our legal "safe harbor" protection if we made a different choice than to immediately respond to the complaint by taking down the content. I will modify the letter we send to people to make that clearer.

I also want to add that the first thing the complaining company tried was to get us to take their whole site down based on saying it was libel and against our Terms of Service. We replied that they were not violating our Terms of Service, and that they would have to take up the libel complaint with the customer. In the case of libel anyway, we are protected from liability under the Communications Decency Act without having to take anything down.

Re: thanks for raising awareness about DMCA

What's interesting there, though, Emma, is that Acorn did not receive an actual DMCA takedown notice, which must follow a particular, if general, form and contain very specific information. Craig did not submit that sort of request, as required by DMCA. No action toward me should ever have been taken until and unless an actual DMCA takedown was submitted.

Nice image

Yes, I agree

Yes, I agree completely. We should not have said anything to you about until getting the official complaint. It turns out that the complaining company changed their mind after we asked for an official complaint, and we just jumped the gun in telling you there was a complaint at all. We were not planning to actually remove your files without an official notice, but we should not have asked you to remove them either.

Re: thanks for raising awareness about DMCA

This people is what is called Customer Service and a brilliant example of understanding your market/stakeholders.

I wish Acorn Host well in your future endeavours Emma and though I am not within the USA, just based on the above post I will recommend you to anyone who might be seeking a customer centric and unbiased hosting provider.

Re: Re: Re: Re: Yes, I agree

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But how can b!x afford to support himself on the salary of an amateur photographer? It’s simple! Squat on assets that directly affect people you claim to respect until they pay you!

In 2009, b!x heard that a film called “The Cabin In the Woods” was being created by Joss Whedon. B!x, the crafty entrepreneur that he is, immediately purchased the rights to thecabininthewoods.net and stole a picture of a run-down cabin from another amateur photographer to use on the site. Within weeks, the execs at Metro-Goldwyn-Mayer Pictures were forced to buy the rights to the domain for a hefty fee. Meanwhile, the photographer who took the cabin photo was being hounded by MGM for copyright violations while never seeing a penny of b!x’s profits. But b!x was a savvy businessman and knew not to share his wealth with people that deserved it.http://epistlesofthomas.wordpress.com/2009/04/28/mgm-unhappy-about-picture-taken-in-public-park /

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Re: Re:

@Anonymous Coward

Actually, Thomas'comment is most certainly relevant if you know the history of this renowned cyberbully!

Christopher Frankonis abuses these kinds of laws all the time in attempt to get Firefly fans shut down (Ask SendingAWave.com), which is likely why no reputable game site will cover his rhetoric. Heaven forbid he should finally get a taste of his own medicine just once (good for you DarkCryo!), and he runs crying to his TechDirt mommy. Typical abuser cowardice.

I for one am waiting for TechDirt's next article, entitled "Critic Abuses Laws To Try To Silence Makers Of Firefly 'Fan-game'".

Re: Re: Re:

@Sharalee Read the blog, right up until the part where he says in brackets, "its a mystery why an avowed private investigator need ask for birthdates" (during account signup I presume). At that point he lost all credbility with me, unless this whole rant is some kind of inside obsession Im not getting. Did DC run over this guy's puppy or something?

He wants to be taken seriously as an intelligent critic, yet he is dumbfounded as to why a competent game company is not conducting unsolicited background investigations on all its gamer accounts during registration?! Holy @&$!

Huh?

This article is a little baffling.

I have always admired TechDirt stories because of your commitment to defending the little guy and sticking it to the man, particularly when it comes to the oppression that is Copyright. In this case, I think you failed to do your due diligence and ended up backing the wrong horse. Here you have Firefly fans that are being harassed by a relentless Copyright troll, who finally (long overdue in my book) took a stand and shoved his own shit down his throat for a change. A lesson in glass houses, really.

Ive been following Firefly fan projects for a long time now, and you honestly would not believe the relentless and unethical attacks this particular Copyright bully has been doing to Firefly fans. He reports Firefly fans (not just DC) to Copyright monopolies and government agencies, getting any and all fan projects shut down in the name of DMCA. This is why true Browncoats are left scratching their heads here.

Not judging your reporting, Mike, just an opinion of several of us over here at FFF that you may wish to take a step back and have a better look next time.

So to be clear, you two accuse this game company, DC, of filing a DMCA. Then this "Frankonis" or "bix" person confesses to lying about it in the comments above, and that DC never did file a DMCA.

I understand why the critic may not be of moral enough character to issue an apology to DC, but that is no excuse for TD. Why exactly has TD not issued a retraction and apology to these game devs for a falsified article, clearly submitted in bad faith?

Re:

How exactly does the removal of a logo translate to silencing a critic? DC didn't ask to take down the text, just the use of their logo. Isn't that their legal right?

I can call FOX - or any celebrity for that matter - whatever names I want in a YouTube video. But if I plaster the 20th C logo everywhere to draw more attention, they will guaranteed slap a copyright strike against me.

Nothing out of the ordinary here, except for the obsessive-compulsive nutcase with too much time on his hands. Dude was begging for it, IMHO.

Wow, they'll give any psycho a wordpress install these days. If this "Bix" gets more that 10 hits per month - not counting his own IP either - I'd really be surprised.

He confesses that his ongoing rage is because "no other game reporting website" writes as terrible and resentful as him. Ummm, perhaps its because they're not?!

Mate if you're reading this, your perverted-sounding "furious nads" blog is the tabloid version of real reporting. I'm no expert, but THAT's prob why real reporting sites can see right through this sort of jealously-driven propoganda.

To everyone above smacking TechDirt, they prob learned their lesson here. This guy's 15 seconds of fame are up.

Re: Re: Re:

I would like to register my rejection of the nasty remark above on April 7th about b!X by someone calling themselves "QuoterGal". Since I've been QuoterGal online since 2003, have had the website/domain quotergal.com since around that time, have claimed QuoterGal at claimid, and have been a friend of The One True b!X since about 2006, it defies belief that I would've posted that comment - especially out of the blue in April, several months after the actual, main discussion on this piece, as well as long after the whole Dark Cryo brouhaha to which it refers.

Since I was highly vocal online in support of b!X's take on Dark Cryo in February, 2013 - although I've never posted here at TechDirt until now - someone clearly thought it would be amusing to snark about b!X using my online identity, to which I object.

I hope you will see fit to remove that earlier remark. Please feel free to email me at the email address I have supplied if you'd like to verify my identity. I just happened to google my name looking for an old post and ran across this by accident. Glad I did, as finding words put in my mouth like that rather upsetting.

Impersoning people? New low.

Anyone who reads b!X's blog, Furious Nads will recognize Thomas' name. But I have to wonder if Jayney, Sorshja and Sharalee, Kevin & Mika are real people and if they are, if they too are being impersonated. Because Quoter Gal certainly was.

Re: Impersoning people? New low.

No Elizabeth Griffin, its me in person. I cannot speak for the others, but I don't believe Karen Wellencamp has a copyright on usernames. If it really wasn't Twinkie girl that commented, perhaps people are simply beginning to sink to meet you two trolls at your own level these days?! Anything is possible.

Re: Re: Impersoning people? New low.

Sorshja, not sure why you are so hostile. We have one clear case of someone posting as someone else, I merely wondered if it had happened more than once. The phrase "methinks she doth protest too much" springs to mind here.

Re: Re: Impersoning people? New low.

QuoterGal may not be copyrighted as her name, but she is well-known in many circles on the Internet by that name. In addition, she posted in defense of b!X on his blog at the time of the original story, so it's rather naive to think anyone posting here 'accidentally' picked her name out of a hat.

I'm not sure who you are calling trolls, but neither QuoterGal (the REAL one) nor Lioness have ever exhibited trolling behaviour in all the years I've known them.

@GE well said, leave the bickering of usernames to the 12 year olds. I concure with the comments above. This troll's blog - filled with namecalling and source avoidance - is not about critique so much as spiteful vengeance.